Sandy Cay beyond the 2016 arbitral award
Sandy Cay (Filipino name: “Pag-asa Cay 2”), a tiny South China Sea (SCS) sandbar found in the western section of our Pag-Asa island’s Territorial Sea (TS), is very much in the news these days.
Yet, in the SCS arbitration, the Philippines discounted its existence. While accepting its presence in the past, we argued that there’s no evidence it had survived the area’s unpredictable tidal turns.
The 2016 SCS Arbitral Award (AA) ruled otherwise, finding that it’s a High Tide Elevation (HTE)—or a feature that stays above water at high tide—based on “the recent editions of all relevant sailing directions (including that of the United States) …” (para. 372).
As an HTE, the cay generates a 12-nautical mile TS that intrudes into the western section of Pag-asa’s TS (paras. 367-373). Recently, China claimed to have seized the cay and its coastguard allegedly water cannoned and sideswiped a Philippine fisheries vessel doing research in its vicinity.
The cay’s TS straddles Subi Reef, a Low-Tide Elevation (LTE)—an underwater feature. China had reclaimed the reef from the sea, turning it into a fortress. China may extend the cay’s TS by using the reef as a basepoint to counter a Philippine claim over Subi Reef, which may be made by using as basepoints for an extended TS two LTEs found in the western section of Pag-asa’s territorial waters. If China reclaims the cay, it will have a permanent outpost too close for comfort to us. And while we’ve occupied Pag-asa since the 1970s, China may also argue—albeit belatedly—that since the cay’s TS traverses Pag-asa, the latter is also subject to its sovereignty.
Both Pag-asa and Sandy Cay lie outside our Exclusive Economic Zone. Yet they are both located inside the old polygonal box of territory created by the 1978 Presidential Decree No. 1596, known as the Kalayaan Island Group (KIG).
However, the AA ruled that any offshore archipelago claims in the SCS—like the KIG —is contrary to international law (paras. 573-576). Such territorial claims will now have to be made on a rock-per-rock basis rather than constituted as a unified whole. Here, the rules of “effective control”, or a consistent display of acts of sovereignty, may matter the most (Palmas Arbitration, 1928; Eritrea/Yemen Phase 1, 1998).
PD 1596 did not specify and identify the features it encompassed. It simply said everything within the KIG was Philippine territory. We accordingly occupied many of the larger features there, nine in all.
In the SCS arbitration, we submitted Annex 97, a list of 43 maritime features subject to overlapping claims by the Philippines, China, Vietnam, and Malaysia. It unfortunately did not include Sandy Cay as among 40 Filipino-claimed or occupied features. Case law holds that general reference “to the islands” with no specific identification fails as proof of “acts a titre du souverain” (Nicaragua v Colombia, 2012).
With the breakup by the AA of the Spratlys into apparently unconnected HTEs and LTEs, we must now follow the so-called “inter-temporal law” on making territorial claims. It must do so by consolidating title to these SCS HTEs.
As soon as the AA was handed down, we should have passed a law that specifically named all Filipino-claimed HTEs in the SCS and formally designated the respective basepoints and baselines of their TS and even their Contiguous Zone or CZ (for sanitation, tax, and customs purposes). Strategic ambiguity no longer works.
The 2024 Philippine Maritime Zones Act (PMZA) only makes a general reference to HTEs we claim as having a TS, without naming any of them (Section 5). Seizing upon this gap, China responded with a law claiming Panatag Shoal (PS) near the Zambales coast—an HTE per the AA—as Chinese territory with a Chinese name. Although it claims PS as part of its Nansha Qundao offshore archipelago, China reported the coordinates of 16 base points for its TS baselines.
Given its recent tack on PS and Sandy Cay, it appears the Chinese government now accepts the AA’s ruling that (1), aside from LTEs and HTEs, none of the features in the SCS are fully-entitled islands; (2) the HTEs only have a TS; and finally, (3), no claimant state, whether China, the Philippines, Vietnam, or Malaysia, may constitute an offshore archipelago in the region. China’s recent actions confirm the AA’s binding force.
Philippine authorities should craft the PMZA’s implementing rules and regulations that does not hesitate (1) to identify and name all Filipino-claimed SCS HTEs and (2) to draw the basepoints and baselines of the HTEs’ respective TS and CZ. They should then deposit the PMZA and its implementing rules and regulations with the UN Secretary General. This, to paraphrase Sun Tzu, is how you win the greatest victory in a territorial contest without waging a war.
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The author is vice chair of the Department of International Law and Maritime Law of the Philippine Judicial Academy.
